Thursday, February 28, 2013

Defending the Right to Carry Guns

Most everyone who uses email has had a message escape unintentionally, but seldom are the consequences as disastrous as they were for Alderman David Marston (First Ward). Since the word got out that the Common Council Legal Committee was, in the aftermath of the tragedy in Newtown, CT, contemplating banning guns in city buildings and city parks, the members of the Legal Committee reportedly have heard from a lot of people--all of whom oppose restrictions on gun ownership and none of whom live in Hudson. For Marston, an email from Joanna Johnson-Smith from New Lebanon, the New York state organizer of Gun Rights Across America, was the straw that broke the camel's back. Johnson-Smith told him, among other things, that he "spit on in the Constitution" and "couldn't give a donkey's behind about individual rights."

Joanna Johnson-Smith

Marston let loose in an email that he never intended to send but did. The gist of Marston's email to Johnson-Smith is well summarized on the Washington-based news and opinion site The Daily Caller. The instant Marston realized the email had been accidentally sent, he sent an apology to Johnson-Smith. As he explained last night, "my lesser self got the best of me." But, although she demanded a public apology from Marston last night, Johnson-Smith refused to accept the private one. She distributed his email as widely as she could. In current parlance, it "went viral," and hundreds of gun owners descended on the Legal Committee meeting. Anticipating the turnout, Council Common president Don Moore announced yesterday afternoon that the meeting would be held not at City Hall but at the Central Fire Station. Once there, the assembled crowd had to be moved again--from the meeting room to the giant truck bay, which had been emptied of trucks.

The crowd was not happy with Marston or with Hudson. The white T-shirt worn by the man in the center of this picture bore the handwritten message "David Marston--a Psychotard is WAITING to beat you up," and the sign held by the man seated next to him read: BOYCOTT HUDSON UNLESS YOU NEED ANTIQUES SOCIAL SERVICES WELFARE DRUGS.[Gossips Note: I have been told that I misquoted the T-shirt, which I readily admit is a possibility. I only saw the full text of the shirt once, before the man wearing it started trying to elude me--or so it appeared to me--because I had pulled out my camera. A commenter has informed me that the message on the shirt was actually "David Marston--This psychotard is WAITING for his beating"--a reference to a statement made in Marston's runaway email.] Alderman John Friedman (Third Ward), who chairs the Legal Committee, clarified that the goal in considering the gun legislation was to "ensure the safety of the people who work in city buildings, who visit City Hall, and who recreate in city parks." He made it clear the legislation was still the subject of research and discussion and mentioned both the City's policy on workplace violence, already in place, and New York State Penal Law Section 400. Saying that the conversation about the gun law "is going to be over in just about ten minutes," he explained that he would allow one pro-gun person to speak for five minutes and one anti-gun person to speak for five minutes.The spokesperson for the pro-gun position was David Luck, who carried a wooden replica rifle with a little American flag stuck in the barrel. He introduced himself as a CPA in Chatham who attends the Rock Solid Church here in Hudson. The basic theme of his presentation was that guns prevent violent crime. He told the audience that rape had reached epidemic proportions in Orlando, Florida, until women were encouraged to buy handguns and learn to use them. When this happened, there was a 90 percent reduction in the incidence of rape. He challenged people who oppose gun ownership to put signs outside their houses declaring "This is a gun-free home" (that statement drew applause) and claimed that schools are targets of violence because they are gun-free zones.There was no one present who wanted to speak for the anti-gun position, but Mayor William Hallenbeck announced that "the City" had a position on the gun law and asked city attorney Cheryl Roberts to explain it. Roberts reported her research, stating her legal opinion that the local law being considered would be preemptive of New York State Penal Law Section 400 and "if the Council passed this law, the City would be sued." Roberts' statement was greeted with thundering applause from the audience.

Many of us use email on a daily basis, and the story goes, what goes on the internet stays on the internet forever. With that said, much thought goes or should go into an email and when you hit the send button, and understanding that “it's out there forever”. We all know this, and I hope we are intelligent enough to understand this. Particularly, to draft such a letter with such strong language, then to retract afterwards saying it was accidentally sent or “unintentional”, and at the moment, thought and time must have went into such letter. If it was truly accidental and “unintentional”, then the letter should never have been drafted in the first place, since time and thought went into such letter, especially with such wording. We all make mistakes. It has happened to us probably more often then not, whether writing an ex, writing to companies, to a friend, etc, but as a public official, maintaining composure is paramount and understanding repercussions and maintaining neutrality is important. With the proposed city law, there have been many whom indeed are city residents that have called alderman and the mayor many times, whether pro or against. Many people who attended last nights gathering were in fact city residents. Myself, with whom others would certainly agree, advocate safety and promote such. Unfortunately, to research and draft such local legislation, which certainly penalizes responsible and legal gun holders does absolutely nothing to promote safety period. The legal gun holders are not the ones contributing to the societies problems with gun violence, especially in this city. Historically in this city, if we pick apart some of Hudson's gun violence, we probably would agree that shootings such as at 1st and Columbia, 2nd and State, 5th St near D&D deli, State St near 5th and many others have all taken place by individuals whom “illegally” possessed weapons for mal-intentions. Also note, none of such took place in city parks and such weapons were either stolen and not registered. When a certain individual, who I shall not name states that you don't need to carry such a weapon, this is not San Juan Puerto Rico, that is his opinion, but I'll be damned to let a persons personal opinion tread on my constitutional right as a responsible citizen to dictate what I can do in a so called free society infringing upon mine and others rights and categorize the legal and responsible gun holders and turn us into criminals. This city has many more important issues on the plate then trying to spearhead legislation just to show Albany and the country that Hudson is doing something about it. If you want to make a real impact, why not try to solve the societies real social issues that we all have cultivated over the last few years. Eventually you may see a decline in gun violence, including many other problems such as poor school performance, child abuse, dysfunctional families, assaults, the list goes on. One last note. I took the time to write this because this is my opinion and I wanted to share and if we all are intelligent, we'll listen and respect the opinions of others. Just don't make your personal opinions law. Solutions from a foundational aspect will provide much better results over the long term then a caulk and putty fix. Thank you.

The aim to "ensure the safety of the people who work in city buildings [and] who visit City Hall" is one thing, and "city parks" quite another.

If the council had not thrown all city properties together under the proposal and only prohibited firearms in municipal buildings, they might not be facing this sort of opposition.

As one alderman said recently, sending messages to Albany is a component of his brand of policy-making. From the sound of it though, I don't think this was the sort of notoriety the aldermen were after.

Count on the city being sued if this legislation comes to pass.

And at City Hall today you may hear the outlines of another lawsuit against new actions of the Common Council's on behalf of the Holcim land transfer deal. This challenge will be made by an ecologist at a public hearing, and will cite new developments which were never mentioned in the LWRP.

To get your head around what new details can look like, just think of the new zoning for the conveyor system, a plan which was denied in the LWRP's environmental Impact Statement but is now, since last week, enshrined in the city code! (Rather, we only just learned last week what the city's new - 15-month old - zoning is.)

All one has to do at today's hearing is to recount their words back to them. That should be simple enough at a public hearing, right? We'll see ...

It is high time that our elected officials behave themselves and engage in conduct that is beyond reproach. Name-calling and vitriol reflects poorly on the office of alderman, the First Ward and the City as a whole.

There is no excuse for Marston's email; he should resign as alderman, and the First Ward should convene, as it has done in the past, and suggest a replacement alderman for consideration by the Common Council.

For all the pro-gun people out there, since you all demand your 2nd Amendment Right to bear arms, in case you aren't aware, the 2nd Amendment to the Constitution was adopted on December 15, 1791. I believe back then they were probably talking about muskets and shotguns. Not automatic rifles and machines guns capable of firing off at least 100 rounds a minute or bullet magazines capable of holding 20-30 rounds. Back then if you were very good at loading your musket, you could probably get 2-3 shots off in a minute?

While technically right that was cutting egde technology for guns and the Kentucky Rifle was a new development, and these were men of science and letters. They were some of the most well educated men of there time they knew that world does not stand still. Gun smiths were working on repeating guns for along time and it was just a matter of time. So your argument is a false argument ment to cloud the minds of the Low Infomation Voters. Which I See you are one of.

The second amendment was a bill of rights "add on" not even part of the original constitution. It was written for a country in post revolution that was 90% wilderness. It should be repealed, all guns collected and melted down. This is the only way to end gun violence. The second amendment argument is idiotic, our politicians are too cowardly and weak to say it.

Thanks for the correction. I got a look at the full text on the shirt only once. As soon as I pulled out my camera, the man wearing it seemed determined to elude me. Not being on Joanna Johnson-Smith's email list, I didn't have the benefit of knowing the full text of David Marston's email to recognize the reference. What I thought I saw made sense to me.

SlowArt, it is more accurate to say that the entire Bill of Rights was an "add-on." The federal Constitution on 1787 contained no Bill of Rights. After 4 months of deliberation, the Framers hadn't even considered a Bill of Rights until their final week. George Mason suggested that a series of bills could easily be drafted "in a few hours."

I vehemently disagree with you that "the second amendment argument is idiotic."

I also vehemently support my alderman, Dave Marston.

"Life moves pretty fast. If you don't stop and look around once in a while, you could miss it" - Ferris Bueller

I cannot find it in my heart to do anything but applaud the Alderman, no matter how rabid his words may be and I am sorry he did not stand his ground, for surely the gun totin' folk seem ready to stand theirs. Rabid words do less harm than bullets shot in anger by madmen or the self-righteous. The amount of American blood that has been shed by Americans who think they have a right to pull the trigger whenever they are alarmed by something moving in the bushes, or when they want to take revenge on someone somewhere, or when they just want to say "Hey, dude, Look at me" far outweighs in horror any extremism in the cause of gun control. Extremism in the defense of sanity may be the best patriotism.

Consider the texts. Second Amendment to the Constitution (Bill of Rights) 1791:"A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. "

THAT IS TO SAY: since a nation needs a militia to defend its freedoms, the people need to have the right to have guns if they are to be members of the well-regulated militia that is needed to defend the freedoms of the nation.

WHAT IS A MILITIA? [US] Militia Act May 1792"That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, ... every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock...."

THAT IS TO SAY: A militia is made up of white male citizens between the ages of 18 and 45 who have guns [muskets and firelocks]

WHAT DOES A MILITIA DO? U.S. Constitution - Article I, Section 8Clause 15. "The Congress shall have Power…To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."Clause 16. "The Congress shall have Power…To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

THAT IS TO SAY: Militias execute the laws if necessary to do so, defend the nation in the case of insurrections and invasions. Militias are organized, armed, and disciplined by the authority of Congress.

If they are strict Constitutional constructionists--and gun rights-ers say they are--then surely they can only conclude from a strict reading of the texts that gun owners can only have guns if they are muskets or firelocks, that those who have the guns must be white males between the ages of 18 and 45 who have been enrolled in a militia called up by Congress for the purpose of defending the law, and/or putting down an insurrection, or repelling an invasion. No where within the language of what have come to be thought of by the gun lobby as sacred texts can one find supported the right of Americans to bear arms who are not white males with muskets between the ages of 18 and 45 and who are not members of a well regulated militia organized and armed by Congress. Nor can one with even the most tortuous parsing can one locate any right to carry concealed weapons into theaters, bars, schools, and churches, or for housewives to pack a Glock to carry to the supermarket, or for their husbands to keep a closet full of semi-automatics assault weapons sufficient to blow away the neighbor's kid if he seems even possibly threatening, or for their 16 years old son fresh from a session at Grand Theft Auto to venture out with his AR-15 to shoot some rabbits or some classmates.

I'm afraid that to conclude that "militias are organized, armed, and disciplined by the authority of Congress" isn't the proper way to interpret the federal act, even by the terms of the 1792 Militia Act (its phrase "of the respective states" is the key).

The reason there was no Bill of Rights in our original Constitution was that the states had their own varying Bills of Rights, which were understood to be sufficient and more appropriate to local conditions.

In effect, the states operated more as separate countries than they do today. Today that's still seen in things like the insurance industry, and in our 50 different policies for refining gasoline, but almost not at all in our daily lives. Today we take it for granted that the distinction between federal and state powers is very blurred.

The circumstances were practically opposite in the early Republic, and a well-ordered militia was understood as an outgrowth of natural law, which preceded the existence of the Republic. A weapon was a citizen's protection against the eternal threat of tyranny, and the greatest threat was seen as coming from the states themselves.

I've never seen a more promising brew for a return of tyranny than I see under our current President. (As Star-Trek's Vulcans are someday meant to say, "Only Nixon can go to China," which can also be taken as warning.)

I think that it is fortunate and inevitable that the ineluctable strong-arming of our growing federal bureaucracy is inspiring a resurgence of state's rights, which like everything else in life will have good and bad results that may eventually require new corrections.

This is not thinking that leads to French-type revolutions, but is a central feature in the history of English-speaking peoples, and by extension also greatly informed the nascent United States.

I say these things as a lover of diversity, and out of respect for local culture, local traditions and local conditions everywhere. Still, these will always require the kinds of wise self-governance which the greatest traditions have imbued in different peoples from birth.

To look forward, it's best to look backwards with a lot of heart. (Watch out - it will surely break!)

The Second Amendment to the United States Constitution is the part of the Bill of Rights and states: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." It was adopted on December 15, 1791, along with the rest of the Bill of Rights. While the Second Amendment is probably one of the most heavily debated topics in the media today, few have carefully studied its meaning, particularly in the historic context in which it was created. In the wake of the failure of the Articles of Confederation, our nation’s first, failed form of government, it was generally conceded that a stronger, central government was an unfortunate and inevitable necessity.

During the drafting of the constitution of the new government, the representatives of several states mistrusted proposals to enlarge federal powers because they were concerned about the inherent risks of centralizing power. Some of our founding fathers, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia. (1) The Second Amendment was specifically created as a compromise and to provide for the states’ right to maintain an armed militia. Indeed, the Second Amendment was intended to provide the means by which the people, as a last resort, could rise in armed revolt against tyrannical authorities. “If not by the jury box and the ballot box then by the bullet box.” (2) The memory of living under the grip of tyranny fresh in their minds, our founding fathers demanded a means by which to free themselves of the central government if necessary.

Theodore Sedgwick, US Senator, state congressman, and associate justice of the Supreme Court of Massachusetts, expressed this sentiment by declaring that it is "a chimerical idea to suppose that a country like this could ever be enslaved . . . Is it possible . . . that an army could be raised for the purpose of enslaving themselves or their brethren? Or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?" (3) Noah Webster, Jr., commonly referred to as the Father of American Scholarship and Education, and a US Congressman from Connecticut, said that “[b]efore a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.” (4)

The Civil War put an end to that theory. Afterward, the state militias and their purposes were “largely … subsumed within those of state-based National Guard brigades.” (5) After the militias were incapable of freeing the states from what they perceived as a tyrannical government in the 1860s, as the Second Amendment provided, they were folded into a military body that the President of the United States can and does command. (6) Today, approximately 43% of the front line forces in Iraq and 55% in Afghanistan are National Guard members. (7) The entity that would overthrow a tyrant in the White House, as provided for by the Second Amendment, is now half of the central government’s standing army.

So what happens to the rights guaranteed in the Second Amendment? Do they disappear because the state militia has been absorbed into the service of the federal government? Do we repeal it because it’s not applicable? Most Americans are not concerned about the quartering of soldiers in their homes during peace time, but we don’t want to give back the rights that the Third Amendment guarantees either. The original purpose of the militia, as proffered by the Second Amendment, was to empower the people as citizen soldiers, by and through the militia, to keep and bear arms. The “militia,” as a tangible thing, is gone. (8) Intangibly, its well-documented original purpose and intent—the right to keep and bear arms—still exists. Esoterically, does the right to overthrow a tyrannical, central government still exist? If so, has it transferred fully to the citizens? Fortunately, there is recent case law that speaks to the subject.

In 2008, the US Supreme Court ruled that “the Second Amendment guarantees an individual's right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” (9) Because that case originated in the District of Columbia, the Court’s ruling was not applicable to citizens living in the United States proper. That issue was resolved by the Court two years later when they decided that “The Second Amendment right to keep and bear arms for self-defense in one's home is fully applicable to the states through the Fourteenth Amendment.” (10)

1. The Federalist Papers No. 46 (James Madison)

2. Col. Charles J. Dunlap, Jr. (1995) “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment" 62 Tennessee Law Review 643

3. Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 97, 2d ed. 1863

4. Noah Webster, An Examination into the Leading Principles of the Federal Constitution (1787), Reprinted in Pamphlets on the Constitution of the United States, Published During Its Discussion by the People, 1787–1788, at 56 (Paul L. Ford, ed. 1971) 1888

5. Lloyd Constantine, Assault on the Constitution: Gun control advocates need to respect what the Second Amendment actually says, Times-Union (Albany, NY) February 25, 2013

6. Todd, Nancy L. New York's historic armories: An illustrated history on armories in New York State. New York: SUNY Press, 2006

The following sentence, quoted from above, lands at the crux of the misunderstanding between those who understand history by way of a theoretical and/or technical reasoning, and those who understand history and life as practical reasoners:

"The original purpose of the militia, as proffered by the Second Amendment, was to empower the people as citizen soldiers, by and through the militia, to keep and bear arms."

The understanding of "rights" among those in the second group is not that the Bill of Rights "proffers" anything, in the sense of an offering for acceptance. That would be anathema to them.

Rather, the amendments preserve rights which are our inheritance and our birthright. These were already hard-won by our ancestors, and long before Columbus ever sailed.

First among those rights was the right of self-defense, and the defense of the qualified liberties the people enjoyed under their various and variable monarchs.

So to rethink the above sentence from a more practical or prudent perspective, the original purpose of the Second Amendment (questions about the purpose of the militia being moot), was to preserve the liberties of the people against the inevitable intrusions of all governments.

The Founders were well aware of the unfortunate fate of militias in England in the 17th c., and were determined to preserve their traditional rights against the most recent reminder of an English King who couldn't be trusted with them.

I look at our history as a continuation of the English-speaking tradition, and cannot begin to conceive of a perspective that assumes that governments (or "constitutions") function as agencies that bestow or proffer "rights."

Speaking for myself, I can only launch into a discussion about the 2nd Amendment - or any of the amendments - from the context I've indicated above. To begin speaking about our immemorial rights in any sort of conventionalist terms, as the quoted sentence does, is already to throw away the best, most preservative thing about our inheritance.

The difference between these assumptions about where our rights come from (and by implication, the differing assumptions about what humans even are!) is at the crux of a tension in American culture that's appearing more and more like a permanent state of heartburn.

“An original purpose of the militia was to empower the people as citizen soldiers, by and through the militia, to keep and bear arms.” Maybe that’s better, but not really. The Second Amendment didn’t ‘give them’ the right to bear arms—they already had it—as Mr. O’Connor has articulated far more intelligently than I ever could.

To switch gears, I’m surprised that firearms are allowed into the City Hall. I travel quite a bit through NY and the New England states, often entering town and city halls to meet with city planners or building inspectors. Many have police or guards manning a magnetometer at the entrance. I’ve learned to leave my pocket knife in the truck; can’t imagine how they’d react if I was carrying a gun.

Years ago, I was entering the Middlesex County Probate Court in Cambridge, Mass., to do a little genealogy research and my pocket knife set off the alarm. I was a bit exasperated to learn that I needed to trek all the way back to where I parked to lock it up and thought it incredulous that they couldn’t allow me in with a little pocket knife.

“Oh no,” the officer explained. “Nobody is allowed to carry any kind of weapon in here, not even an off-duty cop.” What? That had to be untrue. But he explained why: “If we have to respond to an incident in this building, and there’s some cop in street clothes involved with a gun out, the last thing we need is to try and figure out who’s who.” And that security concern goes for any individual waving a pistol.

That's kind of you WH, but I really wasn't out to appear "more intelligent." I believe that I'm teasing out a distinction that the entire culture is blurring over at its peril and which, child of the New Left, I used to blur over too. That was before I discovered the writings of Edmund Burke (1729 - 1797).

Burke correctly predicted that the French Revolution would quickly mutate into a new tyranny owing to the fact that the "Rights of Man" hadn't grown out of the culture's deep traditions but out of a philosophical abstraction. The distinction is easier to appreciate when you consider that Burke fiercely opposed the Jacobins, yet supported the American War of Independence and Irish Home Rule.

So I'm honestly not trying to catch you out when I distinguish the same two strains of thought at work today, both of them practically lurking behind the respective assumptions we hold about our nation and its history. (The bigotry from either side issues from the merely semi-conscious, yet all too often literal aspects of our deepest convictions.)

Which is all to say that I still have to tweak your latest characterization of the 2nd Amendment (at 8:15). It's not because I think you're "wrong," but because it shows that you are clearly of the theoretical school of Jefferson whereas I descend from the practical school of Adams, to stay with our own history. (And well, to be frank, each did believe the other was wrong.)

That's why I must disagree anew with your latest characterization that the "original purpose of the militia was to empower the people."

Rather, the purpose of the militia was for the people to be able to empower themselves.

As for the rest of your post, I agree that what you've described is perfectly common sensical. There are many "gun activists" who'd agree with you too. (I spent yesterday afternoon drinking beer with several of them.)

At the time the aldermen were first discussing this legislation, I was saying that if they'd restrict a weapons ban to apply to city buildings only, then they wouldn't need to anticipate the trouble that they eventually excited. No one would have troubled themselves or even noticed anything amiss with that.

But by now everyone can plainly see that our council is not accustomed to using its common sense - probably like most common councils in the land - and in this case was actually cultivating greater ambitions to make a world-famous splash in the wake of the horrific incident in Connecticut.

So for the council to have demanded a weapons ban on "all city property" was practically an invitation to the reaction they got, and what amounted to a legislative pretension ended up looking like the opposite of common sense. The council was hoisted on its own petard.

It was always my view that that was not an exercise in good government by citizens through their representatives.

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About The Gossips of Rivertown

This blog takes its name from the 1850 novel by Hudson author Alice B. Neal. The original Gossips of Rivertown cast a gimlet eye on Hudson society in the mid-19th century. More than a century and a half later, the new Gossips carries on the spirit of the original, but in a different genre and with a different focus.